THE CASE FOR SPECIAL HEALTH COURTS

June 29, 2006

Philip K. Howard, Chairman of Common Good, a not-for-profit organization, recently gave testimony before the U.S. Senate Health, Education, Labor and Pensions Committee concerning the need to create special health courts as a solution to medical liability litigation.

Special health courts, he says, are intended to provide a better dispute resolution mechanism than the current ad hoc system, and provide a foundation from which deliberate choices can be made to restore order to American healthcare. For example, health courts would:

Eliminate the distrust of justice that impedes quality and contributes to skyrocketing costs.

Provide affirmative incentives to improve the quality of care.

Provide a reliable, efficient and quick compensation system for patients injured by faulty care.

And while the courts could take many forms, Howard believes they should incorporate the following features:

Administrative law judges who handle only medical malpractice disputes, with written opinions on standards of care as well as neutral experts, drawn from approved lists, who would advise the court

Noneconomic damages paid according to a schedule depending on the injury. Achieving horizontal equity among injuries of the same kind, and eliminating the incentive to keep litigating in the hopes (or threats) of a windfall award

A liberalized standard of recovery based on whether the injury should have been avoidable

A requirement of transparency and preliminary procedures designed to resolve claims with a minimum of time and legal cost

Connection to a regulatory department focused on patient safety and disseminating lessons learned

Our country has a long tradition of specialty courts in areas that are complex. We have bankruptcy courts, tax courts and numerous administrative compensation systems. None of these areas are as complex as modern healthcare, and none is more important to our society, says Howard.